Full Judgment Text
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CASE NO.:
Appeal (civil) 3735 of 2005
PETITIONER:
Forum, Prevention of Envn. & Sound Pollution
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 28/10/2005
BENCH:
CJI R.C. Lahoti & Ashok Bhan
JUDGMENT:
J U D G M E N T
R.C. Lahoti, CJI
In exercise of the powers conferred by clause (ii) of sub-
section (2) of Section 3, sub-section (i) and clause (b) of sub-
section (2) of Sections 6 and 25 of the Environment (Protection)
Act, 1986 (29/1986), read with Rule 5 of the Environment
(Protection) Rules, 1986 the Central Government made the
Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter
referred to as ’the Noise Rules’) which have come into force
w.e.f. 14th February, 2000.
Rule 5 of the Noise Rules reads as under:
"5. Restrictions on the use of loud
speakers/public address system:-
(1) A loudspeaker or a public address system
shall not be used except after obtaining written
permission from the authority.
(2) A loudspeaker or a public address system
shall not be used at night (between 10.00 p.m.
to 6.00 a.m.) except in closed premises for
communication within, e.g. auditoria,
conference rooms, community halls and
banquet halls.
(3) Notwithstanding anything contained in sub-
rule (2), the State Government may, subject to
such terms and conditions as are necessary to
reduce noise pollution, permit use of loud
speakers or public address systems during
night hours (between 10.00 p.m. to 12.00
midnight) on or during any cultural or religious
festive occasion of a limited duration not
exceeding fifteen days in all during a calendar
year."
Sub-rule (3) has been inserted in the present form by the Noise
Pollution (Regulation and Control) (Amendment) Rules, 2002
with effect from 11th October, 2002. The constitutional validity
of sub-rule (3) was put in issue by the appellant herein by filing
a writ petition in the High Court of Kerala. By its Judgment dated
14th March, 2003, the High Court has directed the petition to be
dismissed and the sub-rule has been held to be intra vires. The
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aggrieved petitioner has filed this petition by special leave.
On behalf of the appellant, it has been submitted that this
Court in its Judgment dated July 18, 2005 Noise Pollution (V),
in Re., (2005) 5 SCC 733, has held that freedom from noise
pollution is a part of the right to life under Article 21 of the
Constitution. Noise interferes with the fundamental right of the
citizens to live in peace and to protect themselves against forced
audience. This Court has also held that as between 10 p.m. and
6 a.m. which is the time for the people to sleep and have peace,
no noise pollution can be permitted. The appellant also submits
that the impugned sub-rule (3) which permits the State
Government to relax the applicability of sub-rule (2) and grant
exemption therefrom between 10 p.m. and 12 midnight, is
violative of Article 21 of the Constitution and runs counter to the
law laid down by this Court in Noise Pollution (V), in Re.
(supra).
The learned Solicitor General has defended the vires of the
said sub-rule (3) and also the Judgment of the High Court. In
his submission, the power to grant exemption is a reasonable
restriction placed in public interest. The relaxation is for a period
of 2 hours only and that too for a maximum of 15 days in all
during a calendar year confined to cultural or religious occasions.
Since the power has been conferred on the State Government by
the Central Government it cannot further be delegated. The
power would be exercised by the State Government by keeping
in view the interest of the entire State population.
Our attention was invited to Government of Goa Order No.
7/4/98/STE/DIR/Part-I/1116 published in the Official Gazette,
Government of Goa, Extraordinary No. 5, dated 5th February,
2005, wherein exercising the powers conferred by the said sub-
rule (3) of Rule 5, the Government of Goa has specified nine
days, in advance, on which the exemption granted by sub-rule
(3) of Rule 5 would be available. The Government has reserved
the power to notify six more days for cultural/religious festive
occasions. Similarly, our attention was invited to Notification No.
NP 200/24/3 (Part 3) dated 7th April, 2003 whereby the
Maharashtra Government exercising the power under sub-rule
(3) of Rule 5 has notified 12 specific days, in advance, on which
such relaxation shall be permissible and remaining 3 days have
been reserved to be notified, on demand from the local people
for religious festivals and cultural programmes.
A query was raised that once the power to grant
exemption is allowed, often the exemption becomes the rule.
Exemptions tend to be granted as a matter of course and are
thus often misused. Another query raised during the course of
hearing was that in the event of the vires of the said sub-rule (3)
being upheld, nothing prevents the Government from amending
the Noise Rules and enhancing the number of days on which the
power to grant exemption would be available or increasing the
permissible hours of relaxation and that would again defeat the
very object of preventing noise pollution. The learned Solicitor
General responded by submitting that the impugned sub-rule
has very limited operation which is reasonable and may not be
interfered with by the Court, subject to certain further
restrictions. The learned Solicitor General submitted that the
Government does not propose to widen the scope of the
exemption either by increasing the number of days or by
enhancing the duration of hours of exemption. In spite of the
exemption being granted, the Government would take care to
see that the noise level does not exceed prescribed decibel
limits.
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Certain intervention applications were also filed. One
application is by nine organizations/bodies situated in Pune,
seeking impleadment at the hearing in the appeal, so as to
support the impugned judgment of the High Court. There were
other prayers for interventions seeking directions for widening
the scope of exemption under sub-rule (3) of Rule 5. We make
it clear at the very outset, as we did in Noise Pollution (V), in
Re. (supra) that we are not concerned with any religion or
religious practices; we are concerned only with the fundamental
right of the citizens and the people to protect themselves against
noise pollution and forced audiences. We are inclined to quote
the following passage from Times of India (The Speaking Tree)
dated 7.10.2005:
"Those who favour the use of loudspeakers
plead that it is a devotee’s religious duty
enjoined by the shastras to make others listen
and enjoy the singing of bhajans. Azaan too is
necessary to inform others that it is time for
namaz, a job assigned to the muezzin of the
mosque.
Wait a minute. There were no loudspeakers in
the old days. When different civilisations
developed or adopted different faiths or when
holy books were written to guide devotees,
they did not mention the use of loudspeakers
as being vital to spread religious devotion.
So the use of loudspeakers cannot be a must
for performing any religious act. Some argue
that every religion asks its followers to spread
its teachings and the loudspeaker is a modern
instrument that helps to do this more
effectively. They cannot be more wrong. No
religion ever says to force the unwilling to
listen to expressions of religious beliefs.
In the Bhagavad Gita, Krishna says to Arjuna:
"This secret gospel of the Gita should never be
imparted to a man who lacks penance, nor to
him who is wanting in devotion, nor even to
him who lends not a willing ear; and in no case
to him who finds fault with Me... He who,
offering the highest love to Me, preaches the
most profound gospel of the Gita among My
devotees, shall come to Me alone; there is no
doubt about it" (18.67-68).
The gospel should be delivered to only those
who enjoy listening to it and who have the
patience to do so. It shall never be forced upon
those who do not want it. The holy Qur’an
says, "Lakum Deenokum Walia Deen" \027 your
religion and belief is for you and my religion
and belief is for me. Each stay happy with her
own religion and belief. It never says, make
others listen to the gospel of your faith by
using loudspeakers.
A similar instance is found in Biblical literature.
The Gospel according to Saint Luke says:
"When Jesus had called the Twelve together,
he gave them power and authority to drive out
all demons and to cure diseases, and he sent
them out to preach the kingdom of God and to
heal the sick.
He told them: ’Take nothing for the journey \027
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no staff, no bag, no bread, no money, no extra
tunic. Whatever house you enter, stay there
until you leave that town. If people do not
welcome you, shake the dust off your feet
when you leave their town, as a testimony
against them’. So they set out and went from
village to village, preaching the gospel and
healing people everywhere" (9.1-10).
The earlier Supreme Court judgment banning
the un-solicited use of loudspeakers at
inconvenient times is in conformity with
religious tenets."
The above-said passage appeals to us and in our opinion
very correctly states the factual position as to the objective of
several religions and their underlying logic.
Looking at the diversity of cultures and religions in India,
we think that a limited power of exemption from the operation of
the Noise Rules granted by the Central Government in exercise
of its statutory power cannot be held to be unreasonable. The
power to grant exemption is conferred on the State Government.
It cannot be further delegated. The power shall be exercised by
reference to the State as a unit and not by reference to districts,
so as to specify different dates for different districts. It can be
reasonably expected that the State Government would exercise
the power with due care and caution and in public interest.
However, we make it clear that the scope of the exemption
cannot be widened either by increasing the number of days or by
increasing the duration beyond two hours. If that is attempted to
be done, then the said sub-rule (3) conferring power to grant
exemption may be liable to be struck down as violative of
Articles 14 and 21 of the Constitution. We also make it clear that
the State Government should generally specify in advance, the
number and particulars of the days on which such exemption will
be operative. Such specification would exclude arbitrariness in
the exercise of power. The exemption, when granted, shall not
apply to silence zone areas. This is only as a clarification as, this
even otherwise, is the position of law.
Before parting, we would like to clarify further that we may
not be understood as diluting in any manner our holding in
Noise Pollution (V), in Re. (supra). We are also not granting
any exemption or relaxation in favour of anyone by our verdict.
We are only upholding the constitutional validity of the Noise
Rule framed by the Central Government in exercise of its
statutory powers.
Subject to the observations made hereinabove, the appeal
is dismissed and the Judgment of the High Court is affirmed.
All the intervention applications be treated as disposed of.